Ford Credit Floorplan Master Owner Trust __ Series __ Floating Rate Asset Backed Notes [Ford Credit Floorplan Corporation] [Ford Credit Floorplan LLC] (Depositor[s]) Underwriting Agreement
Exhibit 1.1
Ford Credit Floorplan Master Owner Trust __
Series __ Floating Rate Asset Backed Notes
Series __ Floating Rate Asset Backed Notes
Each of the Underwriters party to
this agreement,
as an Underwriter and as a Representative
of the other Underwriters named in
the Terms Annex
this agreement,
as an Underwriter and as a Representative
of the other Underwriters named in
the Terms Annex
Ladies and Gentlemen:
1. Introduction. [Ford Credit Floorplan Corporation, a Delaware corporation (“FCF
Corp” or [a]/[the] “Depositor”)] [and] [Ford Credit Floorplan LLC, a Delaware limited liability
company (“FCF LLC” or
[a]/[the] “Depositor”
[and, together with FCF Corp, the
“Depositors”])
propose[s] to sell the notes (the “Notes”) described in the Terms Annex (the “Terms Annex”) that is
attached as Annex A and incorporated into and made part of this agreement (this agreement including
the Terms Annex, this “Agreement”) through the representative or representatives (in either case,
the “Representatives”) of the underwriters signing this Agreement (the “Underwriters”).
The Notes will be issued by Ford Credit Floorplan Master Owner Trust , a Delaware statutory
trust (the “Issuer” or the “Trust”) established under a trust agreement (the “Trust Agreement”)
between the Depositor[s], a Delaware trustee (the “Delaware Trustee”) and an owner trustee (the
“Owner Trustee”), and will be secured by a pool of dealer floorplan receivables (the “Receivables”)
arising from time to time in connection with the purchase and financing by various retail motor
vehicle dealers of their new and used automobile and truck inventory and the Related Security and
certain monies due thereunder on or after the Series Cutoff Date identified in the Terms Annex.
[The assets of the Issuer also include an Interest in Other Floorplan Assets comprised of a
participation interest in a pool of Receivables existing outside of the Issuer. References herein
to the Receivables include the Receivables held by the Issuer both directly and indirectly through
any participation interest.]
The
Receivables arising from the purchase by dealers of Ford-manufactured or –distributed
vehicles (“In-Transit Receivables”) will be or have been sold by Ford
Motor Company, a Delaware corporation (“Ford”), to Ford Motor Credit Company, a
Delaware corporation (“Ford Credit”), pursuant to a sale and assignment agreement between Ford and Ford
Credit dated as of , 20 (the “Sale and Assignment Agreement”). All Receivables have
been or will be sold by Ford Credit to [each]/[the] Depositor pursuant to a receivables purchase
agreement between Ford Credit and the [applicable] Depositor dated as of , 20
([together,] the “Receivables Purchase Agreement[s]”), and in turn transferred by [each]/[the]
Depositor to the Issuer and serviced for the Issuer by Ford Credit (in such capacity, the
“Servicer”) pursuant to a transfer and servicing agreement dated as of , 20 among the
[applicable] Depositor, the Servicer and the Issuer ([together,] the “Transfer and Servicing
Agreement[s]”). The Notes will be issued in an aggregate principal amount of $ . The
Notes will be issued pursuant to an indenture, dated as of , 20 (the “Base Indenture”),
between the Issuer and [Indenture Trustee], as indenture trustee (the “Indenture Trustee”), as
supplemented by the Series supplement to the Base Indenture, to be dated as of , 20
(the “Indenture Supplement”), between the Issuer and the Indenture Trustee. The Base Indenture and
the Indenture Supplement are collectively referred to as the “Indenture.” Payments in respect of
the Class B Notes, to the extent specified in the Indenture, are subordinated to the rights of the
holders of the Class A Notes.
Ford Credit has agreed to provide notices and perform on behalf of the Issuer certain other
administrative obligations required of the Issuer by the Transfer and Servicing Agreement[s], the
Base Indenture and each indenture supplement for each series of Notes issued by the Issuer pursuant
to an administration agreement dated as of
, 20 (the “Administration Agreement”), among
Ford Credit, as administrator (in such capacity, the “Administrator”), the Indenture Trustee and
the Issuer.
The Sale and Assignment Agreement, the Receivables Purchase Agreement[s], the Transfer and
Servicing Agreement[s], the Indenture, the Trust Agreement and the Administration Agreement are
referred to herein, collectively, as the “Basic Documents.” This Underwriting Agreement, the
indemnification agreement dated
, 20 (the “Indemnification Agreement”), among Ford
Credit and the Representatives and the Basic Documents are collectively called the “Transaction
Documents”. Capitalized terms used herein and not otherwise defined have the meanings given them
in the Transaction Documents.
The [Depositor has]/[Depositors have] prepared and filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”) and the
rules and regulations of the Commission under the Act (the “Rules and Regulations”), a registration
statement on Form S-3 (having the registration number stated in the Terms Annex), including a form
of prospectus and all amendments that are required as of the date of this Agreement relating to the
Notes and the offering of notes from time to time in accordance with Rule 415 under the Act. The
registration statement, as amended, has been declared effective by the Commission. Such
registration statement, as amended at the time of effectiveness, including all material
incorporated by reference therein, is referred to in this Agreement as the “Registration
Statement.” The [Depositor also has]/[Depositors also have] filed with, or will file with, the Commission
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pursuant to Rule 424(b) (“Rule 424(b)”) under the Act a prospectus supplement relating to the Notes
(the “Prospectus Supplement”). The prospectus relating to the Notes in the form first required to
be filed to satisfy the condition set forth in Rule 172(c) under the Act is referred to as the
“Base Prospectus”, and the Base Prospectus as supplemented by the Prospectus Supplement required to
be filed to satisfy the condition set forth in Rule 172(c) under the Act is referred to as the
“Prospectus.” Any reference in this Agreement to the Registration Statement, any preliminary
prospectus used in connection with the offering of the Notes described in the Terms Annex (the
“Preliminary Prospectus”) or the Prospectus will be deemed to refer to and include any exhibits
thereto and any documents incorporated by reference therein, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus or Prospectus, as the case may be.
At or prior to the time that the Representatives first entered into “contracts of sale”
(within the meaning of Rule 159 under the Act, the “Contracts of Sale”) with investors in the
Notes, which time will be specified in the Terms Annex (such time, the “Time of Sale”), the
Depositor[s] had prepared the Preliminary Prospectus and the information (including any
“free-writing prospectus,” as defined pursuant to Rule 405 under the Act (a “Free Writing
Prospectus”)) listed in the Terms Annex under “Time of Sale Information” (collectively, the “Time
of Sale Information”). If, subsequent to the initial Time of Sale, the Depositor[s] and the
Representatives determine that such information included an untrue statement of material fact or
omitted to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading and the Representatives advise the
Depositor[s] that investors of the Notes have elected to terminate their initial Contracts of Sale
and enter into new Contracts of Sale, then “Time of Sale Information” will refer to the information
available to purchasers at the time of entry (prior to the Closing Date) into the first new
Contract of Sale, including any information that corrects such material misstatements or omissions
(such new information, the “Corrective Information”) and the Terms Annex will be deemed to be
amended to include such Corrective Information in the Time of Sale Information. Notwithstanding
the foregoing, for the purposes of the Indemnification Agreement and Section 7 hereof, in the event
that an investor elects not to terminate its initial Contract of Sale and enter into a new Contract
of Sale, “Time of Sale” will refer to the time of entry into such initial Contract of Sale and
“Time of Sale Information” with respect to Notes to be purchased by such investor will refer to
information available to such purchaser at the time of entry into such initial Contract of Sale.
2. Representations and Warranties of the Depositor. The Depositor[s] represent[s] and
warrant[s] to and agree[s] with the Underwriters that, as of the date of this Agreement:
(a) Registration Statement and Prospectus. The Registration Statement has been declared
effective by the Commission under the Act; no stop order suspending the effectiveness of the
Registration Statement has been issued by the Commission and no proceeding for that purpose has
been instituted or, to the knowledge of the Depositor[s], threatened by the Commission, and the
Registration Statement and the
Prospectus and any amendment thereto, at the time the Registration Statement became
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effective and as of the Time of Sale complied, and as of the date of the Prospectus Supplement will comply,
in all material respects with the Act and the Registration Statement did not, at the time the
Registration Statement became effective or as of the Time of Sale, and will not, on the Closing
Date, contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and as of the date of the Prospectus and
any amendment or supplement thereto and on the date of this Agreement, the Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, that the Depositor[s] make[s]
no representation and warranty with respect to any statements or omissions made in reliance upon
and in conformity with information relating to any Underwriter furnished to the Depositor[s] in
writing by such Underwriter through the Representatives expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto; and the conditions to the use
by the Depositor[s] of a registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to the Registration Statement
and the Prospectus. When the Indenture is executed by all the parties to the Indenture, it will
conform in all material respects with the Trust Indenture Act of 1939, as amended (the “TIA”) and
at all times thereafter will be duly qualified under the TIA.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the Depositor[s] make[s] no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with information furnished to the Depositor[s] by an Underwriter through the
Representatives expressly for use in such Time of Sale Information; provided that if subsequent to
the Time of Sale but prior to or on the Closing Date the Depositor[s] and the Representatives
determine that the Time of Sale Information included an untrue statement of material fact or
omitted to state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, for purposes of this paragraph, Time of
Sale Information will include any Corrective Information provided to the Representatives or
Underwriters by the Depositor[s] in accordance with Section 5(c).
(c) Trust Free Writing Prospectus. Other than the Preliminary Prospectus and the Prospectus,
the Depositor[s] (including [its]/[their] agents and representatives other than the Underwriters in
their capacity as such) [has]/[have] not prepared or authorized, and will not prepare or authorize
any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to
sell or solicitation of an offer to buy the Notes other than the documents, if any, listed as a
“Trust Free Writing Prospectus” (each, a “Trust Free Writing Prospectus”) under “Time of Sale
Information” in the Terms Annex. Each such Trust Free Writing Prospectus complied in all material
respects with the Act, has been filed in accordance with Section 8 (to the extent required
by Rule 433 under the Act) and, when taken together with the Preliminary Prospectus,
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such Trust Free Writing Prospectus, did not at the Time of Sale, and at the Closing Date will not,
contain any untrue statements of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that the Depositor[s] make[s] no representation and warranty with respect
to any statements or omissions made in reliance upon and in conformity with information furnished
to the Depositor[s]by an Underwriter through the Representatives expressly for use in such Trust
Free Writing Prospectus.
(d) Documents Incorporated by Reference. Other than with respect to any Derived Information
(as to which the Depositor[s] make[s] no representation) the documents incorporated by reference in
the Prospectus, when they were filed with the Commission, conformed in all material respects to the
requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the “Exchange Act”); and any further documents so filed and incorporated
by reference in the Prospectus, when such documents are filed with the Commission, will conform in
all material respects to the requirements of the Exchange Act and the rules and regulations
thereunder.
(e) Organization and Qualification. [FCF Corp is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware. FCF Corp is qualified as a
foreign corporation in good standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its properties or the conduct of its activities
requires such qualification, license or approval, unless the failure to obtain such qualifications,
licenses or approvals would not reasonably be expected to have a material adverse effect on FCF
Corp’s ability to perform its obligations under the Transaction Documents to which it is a party.]/
[FCF LLC is duly organized and validly existing as a limited liability company in good standing
under the laws of the State of Delaware. FCF LLC is qualified as a foreign limited liability
company in good standing and has obtained all necessary licenses and approvals in all jurisdictions
in which the ownership or lease of its properties or the conduct of its activities requires such
qualification, license or approval, unless the failure to obtain such qualifications, licenses or
approvals would not reasonably be expected to have a material adverse effect on FCF LLC’s ability
to perform its obligations under the Transaction Documents to which it is a party.]
(f) No Conflicts and No Violation. The consummation of the transactions contemplated by the
Transaction Documents to which [the]/[each] Depositor is a party and the fulfillment of the terms
of the Transaction Documents to which [the]/[each] Depositor is a party will not (i) conflict with
or result in a breach of the terms or provisions of, or constitute a default under any indenture,
mortgage, deed of trust, loan agreement, guarantee or similar agreement or instrument under which
the [related] Depositor is a debtor or guarantor, (ii) result in the creation or imposition of any
lien, charge or encumbrance upon any of the properties or assets of the [related] Depositor
pursuant to the terms of any such indenture, mortgage, deed of trust, loan agreement, guarantee or
similar agreement or instrument (other than the [related] Transfer and Servicing Agreement), (iii)
violate the [Certificate of Incorporation or Bylaws] [or] [Certificate of Formation or Limited Liability Company Agreement] [, respectively], or
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(iv) violate any law or, to the [Depositor’s]/[Depositors’] knowledge, any order, rule or regulation
applicable to [the]/[such] Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction over [the]/[such]
Depositor or its properties, in each case which conflict, breach, default, lien, or violation would
reasonably be expected to have a material adverse effect on [the]/[such] Depositor’s ability to
perform its obligations under the Transaction Documents to which it is a party.
(g)
Power, Authorization and Enforceability. [The]/[Each] Depositor has the power and
authority to execute deliver and perform the terms of each of the Transaction Documents to which it
is a party. [The]/[Each] Depositor has authorized the execution, delivery and performance of the
terms of this Agreement and on the Closing Date, the other Transaction Documents to which
[the]/[such] Depositor will be a party will have been duly authorized, executed and delivered by
[the]/[such] Depositor. Each of the Transaction Documents to which [the]/[each] Depositor will be
a party is the legal, valid and binding obligation of [the]/[such] Depositor enforceable against
[the]/[such] Depositor, except as may be limited by insolvency, bankruptcy, reorganization or other
laws relating to the enforcement of creditors’ rights or by general equitable principles.
(h)
Conformity of Transaction Documents. The Transaction Documents will conform to their
descriptions in the Prospectus in all material respects.
(i)
Enforceability of Notes. On the Closing Date, the Notes will have been duly executed,
issued and delivered, and when authenticated by the Indenture Trustee and paid for by the
Underwriters in accordance with this Agreement, will constitute valid and binding obligations of
the Trust entitled to the benefits provided by the Indenture.
(j)
Representations and Warranties in the Basic Documents. The representations and warranties
of [the]/[each] Depositor in the Basic Documents to which it will be a party will be true and
correct in all material respects as of the date specified.
(k)
Ineligible
Issuer. [The Depositor is not]/[Neither Depositor is], and on the date on
which the first bona fide offer of the Notes is made will not be, an “ineligible issuer”, as
defined in Rule 405 under the Act.
3. Purchase, Sale, and Delivery of the Notes. On the Closing Date, on the basis of
the representations, warranties, and agreements contained in this Agreement, but subject to the
terms and conditions set forth in this Agreement, the Depositor[s] agree[s] to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase from the
Depositor[s], the respective principal amounts of the Notes set forth opposite such Underwriter’s
name in the Terms Annex. The Notes will be purchased by the Underwriters at the purchase prices
set forth in the Terms Annex.
Payment of the Notes will be made to the Depositor[s] or to [its]/[their] order by wire
transfer of immediately available funds at 10:00 a.m., New York City time,
on the closing date specified in the Terms Annex (the “Closing Date”) or at such other
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time not later than seven (7) full Business Days after such specified closing date as the
Representatives and the Depositor[s] may determine.
Payment for the Notes will be made against delivery to the Representatives, for the account of
the Underwriters, at the office of [ ] on the Closing Date. Each of the Notes to be so
delivered will be initially represented by one or more notes registered in the name of Cede & Co.,
the nominee of The Depository Trust Company (“DTC”). The interests of the beneficial owners of the
Notes will be represented by book entries on the records of DTC and its participating members.
4. Offering by Underwriters. The Depositor[s] understand[s] that the Underwriters
intend to offer the Notes for sale to the public (which may include selected dealers) upon the
terms set forth in the Prospectus.
5. Covenants of the Depositor. The Depositor[s] covenant[s] and agree[s] with the
Underwriters:
(a) Preparation of Offering Documents. Immediately following the execution of this Agreement,
to prepare a prospectus supplement setting forth such information from the Terms Annex and such
other information as the Depositor[s] deem[s] appropriate.
(b) Filing of Prospectus and any Trust Free Writing Prospectus. If required, to transmit the
Prospectus to the Commission within the applicable time period prescribed for such filings under
the Rules and Regulations by a means reasonably calculated to result in a timely filing with the
Commission pursuant to Rule 424(b) and subject to Section 8, file any Trust Free Writing
Prospectuses to the extent required by Rule 433 under the Act.
(c) Delivery of Proposed Amendment or Supplement. Prior to the Closing Date, to furnish the
Representatives with a copy of any proposed amendment or supplement to the Registration Statement
or the Prospectus and to give the Representatives reasonable opportunity to review such amendment
or supplement before it is filed and to provide any final Corrective Information to the
Representatives or such Underwriter at a time prior to the new Time of Sale reasonably calculated
to allow such Underwriter to provide such Corrective Information to each investor at least 24 hours
prior to the new Time of Sale.
(d) Notice to the Representatives. Prior to the Closing Date, to advise the Representatives
promptly (i) when any amendment to the Registration Statement or supplement to the Prospectus is
filed or becomes effective, (ii) of any request by the Commission for any amendment to the
Registration Statement or any supplement to the Prospectus, (iii) of any stop order issued by the
Commission suspending the effectiveness of the Registration Statement or the initiation or threat
of any proceeding for that purpose, and (iv) of the receipt of any notification with respect to any
suspension of the qualification of the Notes for offer and sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose; and to use its best efforts to prevent the issuance of any
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such stop order or notification and, if issued, to promptly use its best efforts to obtain its
withdrawal.
(e) Blue Sky Compliance. To endeavor to qualify the Notes for offer and sale under the
securities laws of such states as the Representatives may reasonably request and to continue such
qualifications in effect so long as necessary under such laws for the distribution of such Notes;
provided that the Depositor[s] will not be required to qualify as a foreign limited liability
company to do business, or to file a general consent to service of process in any jurisdiction; and
provided further that the expense of maintaining any such qualification more than one year from the
Closing Date will be at the Representatives’ expense.
(f) Delivery of Prospectus. To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may reasonably request prior to
the Closing Date. If the delivery of a prospectus or offering document is required by law in
connection with sales of any Notes in the six-month period following the Closing Date, and either
(i) an event has occurred as a result of which the Prospectus would include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or (ii) for any other
reason it is necessary during such same period to amend or supplement the Prospectus as amended or
supplemented, to notify the Representatives and to prepare and furnish to the Representatives as
the Representatives may from time to time reasonably request an amendment or a supplement to the
Prospectus that will correct such statement or omission or effect such compliance. If an
Underwriter is required by law to deliver a prospectus or other offering document in connection
with sales of any Notes at any time six months or more after the Closing Date, upon the
Representatives’ request, but at the expense of such Underwriter, the Depositor will prepare and
deliver to such Underwriter as many copies as the Representatives may reasonably request of an
amended or supplemented prospectus or offering document complying with the Act.
(g) Earnings Statement. To make generally available to Noteholders as soon as practicable,
but in any event no later than eighteen months after the Closing Date, an earnings statement for
the Trust complying with Rule 158 under the Act and covering a period of at least twelve
consecutive months beginning after the Closing Date; provided that this covenant may be satisfied
by posting the monthly investor report for the Trust on a publicly available website.
(h) Payment of Costs and Expenses. To pay or cause to be paid the following costs and
expenses incident to the performance of its obligations hereunder: (i) the Commission’s filing
fees with respect to the Notes; (ii) all fees of any rating agencies rating the Notes; (iii) all
fees and expenses of the Indenture Trustee, the Delaware Trustee and the Owner Trustee; (iv) all
reasonable fees and expenses of counsel to the Indenture Trustee; (v) all reasonable fees and
expenses of counsel to the Owner Trustee; (vi) all reasonable fees and expenses of counsel to the
Delaware Trustee; (vii) all fees and expenses of the independent accountants relating to the letter
referred to in Section 6(a);
(viii) all fees and expenses of accountants incurred in connection with the delivery of any
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accountants’ or auditors’ reports required pursuant to the Indenture or the Transfer and Servicing
Agreement; (ix) the cost of printing any preliminary and final prospectuses provided to investors
(including any amendments and supplements thereto required within six months from the Closing Date
pursuant to Section 5(f)) relating to the Notes and the Registration Statement; and (x) any other
fees and expenses incurred in connection with the performance of its obligations hereunder.
The Underwriters will pay the following costs and expenses incident to the performance of
their obligations under this Agreement: (i) all Blue Sky fees and expenses as well as reasonable
fees and expenses of counsel in connection with state securities law qualifications and any legal
investment surveys; and (ii) the reasonable fees and expenses of counsel to the Underwriters.
Except as provided in this subsection (i) and Section 10, the Underwriters will pay all their own
costs and expenses, including the cost of printing any agreement among underwriters, transfer taxes
on resale of the Notes by the Underwriters, and any advertising expenses in connection with any
offers that the Underwriters may make.
(i) Delivery of Reports. From the date of this Agreement until the retirement of the Notes,
or until such time as the Representatives advise the Depositor[s] that the Underwriters have ceased
to maintain a secondary market in the Notes, whichever occurs first, to deliver to the
Representatives upon request to the extent not otherwise available from any publicly available
source copies of: (i) the annual statement of compliance, the Servicer’s report on its assessment
of compliance with the minimum servicing criteria and the related attestation report delivered
pursuant to Article of the Transfer and Servicing Agreement[s], (ii) each certificate and the
annual statements of compliance delivered to the Indenture Trustee pursuant to Article III of the
Indenture, (iii) each amendment to any Basic Document and (iv) each monthly investor report for the
Trust.
(j) Cooperation with Rating Agencies. If the ratings provided with respect to the Notes by
the rating agency or agencies that initially rate the Notes are conditional upon the furnishing of
documents or the taking of any other actions by the Depositor[s], the Depositor[s] will furnish
such documents and take any such other actions.
6. Conditions of the Obligations of the Underwriters. The obligations of the
Underwriters to purchase and pay for the Notes will be subject to the accuracy of the
representations and warranties on the part of the Depositor[s] in this Agreement, to the accuracy
of the statements of officers of the Depositor[s] and Ford Credit made pursuant to the provisions
of this Agreement, to the performance by the Depositor[s] of [its]/[their] obligations under this
Agreement and to the following additional conditions precedent:
(a) Accountants’ Letter. On or prior to the Closing Date, (or other independent
accountants reasonably acceptable to the Representatives) will have furnished to the
Representatives a letter dated as of the Closing Date substantially in the
form and substance of the draft to which the Representatives previously agreed, concerning
information at the Time of Sale and as of the Closing Date.
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(b) Registration Compliance; No Stop Order. The Prospectus and each Trust Free Writing
Prospectus will have been timely filed with the Commission under the Act (in the case of an Trust
Free Writing Prospectus, to the extent required by Rule 433 under the Act) and in accordance with
Section 5(b) of this Agreement; and, as of the Closing Date, no stop order suspending the
effectiveness of the Registration Statement will be in effect, and no proceedings for such purpose
will be pending before or, to the knowledge of the Depositor[s], threatened by the Commission.
(c) Officer’s Certificates as to Representations and Warranties. The Representatives will
have received an officer’s certificate dated the Closing Date of the Chairman of the Board, the
President, an Executive Vice President, a Vice President, the Treasurer or any Assistant Treasurer
of:
(i) Ford Credit, in which such officer will state that, to his or her knowledge after
reasonable investigation, the representations and warranties of the Servicer contained in
[the]/[each] Transfer and Servicing Agreement and of Ford Credit contained in [the]/[each]
Receivables Purchase Agreement are true and correct in all material respects and that Ford
Credit has complied with all agreements and satisfied all conditions to be performed by it
or satisfied by it under such agreements in all material respects.
(ii) [The]/[Each] Depositor, in which such officer will state that, to his or her
knowledge after reasonable investigation, the representations and warranties of the
Depositor contained in the Trust Agreement, the [related] Transfer and Servicing Agreement
and the [related] Receivables Purchase Agreement are true and correct in all material
respects, and that [the]/[such] Depositor has complied with all agreements and satisfied
all conditions to be performed by it or satisfied by it under such agreements in all
material respects.
(d) Officer’s Certificates as to Conditions Precedent. The Representatives will have received
as of the Closing Date an officer’s certificate signed by the Chairman of the Board, the President,
an Executive Vice President, a Vice President, the Treasurer or the Assistant Treasurer of
[the]/[each] Depositor representing and warranting that the representations and warranties of
[the]/[such] Depositor in this Agreement are true and correct in all material respects, and that
[the]/[such] Depositor has complied with all agreements and satisfied all conditions to be
performed by it or satisfied by it under this Agreement in all material respects.
(e) No Material Adverse Change. Since the respective dates as of which information is given
in the Prospectus, as amended or supplemented, there has not occurred any material adverse change,
or any development involving a prospective material adverse change, in or affecting particularly
(i) the business or assets of [the]/[each] Depositor, or any material adverse change in the
financial position or results of operations of [the]/[such] Depositor or (ii) the business or
assets of Ford Credit and its
subsidiaries considered as a whole, or any material adverse change in the financial position
or results of operations of Ford Credit and its subsidiaries considered as a whole, otherwise than
as set forth or contemplated in the Prospectus, which in any case makes it
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impracticable or inadvisable in the Representatives’ reasonable judgment to proceed with the public offering or the
delivery of the Notes on the terms and in the manner contemplated in the Prospectus.
(f) War Out. Subsequent to the execution and delivery of this Agreement, the United States
has not become engaged in hostilities which have resulted in the declaration of a national
emergency or a declaration of war, which makes it impracticable or inadvisable in the
Representatives’ reasonable judgment to proceed with the public offering or the delivery of the
Notes on the terms and in the manner contemplated in the Prospectus, as amended and supplemented.
(g)
Depositor Opinion[s]. , [assistant] secretary of and counsel to the
Depositor[s], or other counsel satisfactory to the Representatives in their reasonable judgment,
will have furnished to the Representatives, his written opinion, dated as of the Closing Date, in
form satisfactory to the Representatives and counsel to the Underwriters in their reasonable
judgment, to the effect that:
(i) [FCF Corp is validly existing and in good standing as a corporation under the
Delaware General Corporation Law. FCF Corp is duly qualified to transact business and is
in good standing in each jurisdiction in the United States of America in which the conduct
of its business or the ownership of its properties requires such qualification, unless the
failure to obtain such qualification would not reasonably be expected to have a material
adverse effect on the ability of FCF Corp to perform its obligations under the Transaction
Documents to which it is a party.]
(ii) [FCF LLC is validly existing and in good standing as a limited liability company
under the Delaware Limited Liability Company Act. FCF Corp is duly qualified to transact
business is in good standing in each jurisdiction in the United States of America in which
the conduct of its business or the ownership of its properties requires such qualification,
unless the failure to obtain such qualification would not reasonably be expected to have a
material adverse effect on the ability of FCF LLC to perform its obligations under the
Transaction Documents to which it is a party.]
(iii) [FCF Corp has the corporate power and authority to execute, deliver and perform
all its obligations under the Transaction Documents to which it is a party under the
Delaware General Corporation Law. FCF Corp has duly authorized the execution and delivery
of the Transaction Documents to which it is a party and the consummation of the
transactions contemplated thereby by all requisite action under the Delaware General
Corporation Law. FCF Corp has duly executed and delivered each of the Transaction
Documents to which it is a party under the Delaware General Corporation Law.]
(iv) [FCF LLC has the limited liability company power and authority to execute,
deliver and perform all its obligations under the Transaction Documents to which it is a
party under the Delaware Limited Liability Company
11
Act. FCF LLC has duly authorized the
execution and delivery of the Transaction Documents to which it is a party and the
consummation of the transactions contemplated thereby by all requisite action under the
Delaware Limited Liability Company Act. FCF LLC has duly executed and delivered each of
the Transaction Documents to which it is a party under the Delaware Limited Liability
Company Act.]
(v) The execution and delivery by [FCF Corp] [and] [FCF LLC] of each of the
Transaction Documents to which it is a party and the consummation by [FCF Corp] [and] [FCF
LLC] of the transactions contemplated thereby, will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under or result in the
creation or imposition of any lien, charge or encumbrance, other than pursuant to the
Transaction Documents, upon any of the properties or assets of [FCF Corp] [or] [FCF LLC]
pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease financing agreement or similar agreement or instrument known to me under
which [FCF Corp] [or] [FCF LLC] is a debtor or guarantor, nor will such action conflict
with or violate the provisions of [the Certificate of Incorporation or the Bylaws of FCF
Corp] [or] [the Certificate of Formation or Limited Liability Company of FCF LLC]. The
Registration Statement (other than the financial statements and other accounting
information contained therein or omitted therefrom, as to which such counsel may express no
opinion), at the time it became effective, did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading.
(vi) The Registration Statement (other than the financial statements and other
accounting information contained therein or omitted therefrom, as to which such counsel may
express no opinion), at the time it became effective, did not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(vii) The Prospectus (other than the financial statements and the other accounting
information contained therein or omitted therefrom and the information contained therein
provided by the Underwriters, as to which such counsel may express no opinion) on the date
thereof did not, and on the Closing Date does not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(viii) Such counsel does not know of any contract or other document of a character
required to be filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or
required to be described in the Registration Statement or the Prospectus that is not
filed or incorporated by reference or described as required.
12
(ix) The Notes and the Transaction Documents conform in all material respects
with the descriptions thereof contained in the Registration Statement and the Prospectus.
(x) To such counsel’s knowledge, there are no legal or governmental proceedings
pending or threatened against [FCF Corp] [or] [FCF LLC], or to which [its]/[their
respective] properties are subject, (i) seeking any determination or ruling that could
reasonably be expected to have a material adverse effect on the ability of [FCF Corp] [or]
[FCF LLC] to enter into or perform their respective obligations under any of the
Transaction Documents to which they are parties, or (ii) seeking to prevent the issuance of
the Notes or the consummation of any of the transactions contemplated by the Transaction
Documents, or to adversely affect the characterization of the Notes as indebtedness for
U.S. federal income tax purposes.
(xi) Immediately prior to the sale or assignment of the Receivables and the Related
Security by [FCF Corp] [and] [FCF LLC] to the Trust, [FCF Corp] [and] [FCF LLC] [, as
applicable,] owned the Receivables and the Related Security free and clear of any lien,
security interest or charge. The assignment of the Receivables and the Related Security,
all documents and instruments relating thereto and all proceeds thereof to the Trust
pursuant to the Transfer and Servicing Agreement[s] vests in the Trust all interests that
were purported to be conveyed thereby, free and clear or any lien, security interest or
charge, except as specifically permitted pursuant to the Transfer and Servicing
Agreement[s] or other Transaction Documents.
(xii) No consent, approval, authorization or order of any United States federal or
Michigan State court or governmental agency or body, which has not been obtained or taken
and is not in full force and effect, is required for the consummation of the transactions
contemplated by the Transaction Documents.
(xiii) Neither the issuance or sale of the Notes, nor the execution and delivery by
[FCF Corp] [or] [FCF LLC] of the Transaction Documents to which they are a party, nor the
consummation of any of the other transactions contemplated in the Transaction Documents to
which they are a party will contravene the terms of any material provision of any United
States federal or Michigan State statute, order or regulation applicable to [FCF Corp] [or]
[FCF LLC], as the case may be, or the [Delaware General Corporation Law] [or] [Delaware
Limited Liability Company Act], as applicable, unless such contravention would not
reasonably be expected to have a material adverse effect on the ability of [FCF Corp] [or]
[FCF LLC] to enter into or perform its obligations under the Transaction Documents, or have
a material adverse effect on the validity or enforceability of the Transaction Documents.
Such opinion may be made subject to the qualifications that the enforceability of the terms of
the Transaction Documents and the Notes may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or affecting the enforcement
13
of creditors’ rights generally and by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(h) Ford Credit Opinions. , [assistant] secretary of and counsel to Ford Credit, or
other counsel satisfactory to the Representatives in their reasonable judgment, will have furnished
to the Representatives his written opinion, dated as of the Closing Date, in form satisfactory to
the Representatives and counsel to the Underwriters in their reasonable judgment, to the effect
that:
(i) Ford Credit is validly existing and in good standing as a corporation under the
Delaware General Corporation Law. Ford Credit is duly qualified to transact business and
is in good standing in each jurisdiction in the United States of America in which the
conduct of its business or the ownership of its properties requires such qualification,
unless the failure to obtain such qualification would not reasonably be expected to have a
material adverse effect on the ability of Ford Credit to perform its obligations under the
Transaction Documents to which it is a party.
(ii) Ford Credit has the corporate power and authority to execute, deliver and perform
all its obligations under the Transaction Documents to which it is a party under the
Delaware General Corporation Law. Ford Credit has duly authorized the execution and
delivery of the Transaction Documents to which it is a party and the consummation of the
transactions contemplated thereby by all requisite corporate action under the Delaware
General Corporation Law. Ford Credit has duly executed and delivered each of the
Transaction Documents to which it is a party under the Delaware General Corporation Law.
(iii) The execution and delivery by Ford Credit of each of the Transaction Documents
to which it is a party and the consummation by Ford Credit of the transactions contemplated
thereby, will not conflict with or result in a breach of any of the terms or provisions of,
or constitute a default (in each case material to Ford Credit and its subsidiaries
considered as a whole) under, or result in the creation or imposition of any lien, charge
or encumbrance (in each case material to Ford Credit and its subsidiaries considered as a
whole), other than pursuant to the Transaction Documents, upon any of the properties or
assets of Ford Credit pursuant to the terms of any indenture, mortgage, deed of trust, loan
agreement, guarantee, lease financing agreement or similar agreement or instrument known to
me under which Ford Credit is a debtor or guarantor, nor will such action conflict with or
violate any of the provisions of the Certificate of Incorporation or the By-Laws of Ford
Credit.
(iv) To such counsel’s knowledge, there are no legal or governmental proceedings
pending or threatened against Ford Credit or to which its properties are subject, (i)
seeking any determination or ruling that could reasonably be expected to have a material
adverse effect on the ability of Ford
Credit to enter into or perform its obligations under any of the Transaction Documents
to which it is a party or have a material adverse effect on the validity
14
and enforceability
of any of the Transaction Documents to which it is a party, or (ii) seeking to prevent the
issuance of the Notes or the consummation of any of the transactions contemplated by the
Transaction Documents, or to adversely affect the characterization of the Notes as
indebtedness for U.S. federal income tax purposes.
(v) The statements in the Prospectus under the caption “Material Legal Aspects of the
Receivables”, to the extent they constitute matters of the law or legal conclusions, are
correct in all material respects.
(vi) Immediately prior to the sale of the Receivables by Ford Credit to [FCF Corp]
[and] [FCF LLC], Ford Credit owned the Receivables free and clear of any lien, security
interest or charge. Ford Credit has duly and validly assigned each Receivable to [FCF
Corp] [or] [FCF LLC] [, as applicable].
(vii) No consent, approval, authorization or order of any United States federal or
Michigan State court or governmental agency or body, which has not been obtained or taken
and is not in full force and effect, is required for the consummation of the transactions
contemplated by the Transaction Documents.
(viii) Neither the issuance or sale of the Notes, nor the execution and delivery by
Ford Credit of the Notes or the Transaction Documents to which it is a party, nor the
consummation of any of the other transactions contemplated in the Transaction Documents to
which it is a party will contravene the terms of any material provision of any United
States federal or Michigan State statute, order or regulation applicable to Ford Credit, or
the Delaware General Corporation Law, unless such contravention would not reasonably be
expected to have a material adverse effect on the ability of Ford Credit to enter into or
perform its obligations under the Transaction Documents, or have a material adverse effect
on the validity or enforceability of the Transaction Documents.
(i) Ford Opinions. , [Associate] General Counsel of Ford, or other counsel
satisfactory to the Representatives in their reasonable judgment, will have furnished to the
Representatives his written opinion, dated as of the Closing Date, in form satisfactory to the
Representatives and counsel to the Underwriters in their reasonable judgment, to the effect that:
(i) Ford is validly existing and in good standing as a corporation under the Delaware
General Corporation Law. Ford is duly qualified to transact business and is in good
standing in each jurisdiction in the United States of America in which the conduct of its
business or the ownership of its property requires such qualification, unless the failure
to obtain such qualification would not reasonably be expected to have a material adverse
effect on the ability of Ford to perform its obligations under the Sale and Assignment
Agreement.
(ii) Ford has the corporate power and authority to execute, deliver and perform all
its obligations under the Sale and Assignment Agreement
15
under the Delaware General
Corporation Law. The execution and delivery of the Sale and Assignment Agreement and the
consummation of the transaction contemplated thereby have been duly authorized by all
requisite action on the part of Ford under the Delaware General Corporation Law. The Sale
and Assignment Agreement has been duly executed and delivered by Ford under the Delaware
General Corporation Law.
(iii) The execution and delivery by Ford of the Sale and Assignment Agreement, and the
consummation of the transactions contemplated thereby, will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default (in each case
material to Ford and its subsidiaries considered as a whole) under, or result in the
creation or imposition of any lien, charge or encumbrance (in each case material to Ford
and its subsidiaries considered as a whole), other than pursuant to the Sale and Assignment
Agreement, upon any of the properties or assets of Ford pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or
similar agreement or instrument known to me under which Ford is a debtor or guarantor, nor
will such action conflict with or violate any of the provisions of the Certificate of
Incorporation or the By-Laws of Ford.
(iv) To such counsel’s knowledge, there are no legal or governmental proceedings
pending or threatened against Ford or to which any property of Ford is subject, (i) seeking
any determination or ruling that could reasonably be expected to have a material adverse
effect on the ability of Ford to enter into or perform its obligations under the Sale and
Assignment Agreement or have a material adverse effect on the validity and enforceability
of the Sale and Assignment Agreement or (ii) seeking to prevent the consummation of any of
the transactions contemplated by the Sale and Assignment Agreement.
(v) Immediately prior to the sale of the In-Transit Receivables by Ford to Ford
Credit, Ford owned the In-Transit Receivables free and clear of any lien, security interest
or charge. Ford has duly and validly assigned each In-Transit Receivable to Ford Credit.
(vi) No consent, approval, authorization or order of any United States federal or
Michigan State court or governmental agency or body, which has not been obtained or taken
and is not in full force and effect, is required for the consummation of the transactions
contemplated by the Sale and Assignment Agreement.
(vii) Neither the execution and delivery by Ford of the Sale and Assignment Agreement
nor the consummation of the transactions contemplated thereby will contravene the terms of
any material provision of any United States federal or Michigan State statute, order or
regulation applicable to Ford or the Delaware General Corporation Law, unless such
contravention would
not reasonably be expected to have a material adverse effect on the ability of Ford to
enter into or perform its obligations under the Sale and Assignment Agreement, or
16
have a
material adverse effect on the validity or enforceability of the Sale and Assignment
Agreement.
(j) Bankruptcy
Opinions.
, or other counsel satisfactory to the Representatives in
their reasonable judgment, will have furnished their written opinion, dated the Closing Date, with
respect to the characterization of the transfer of the In-Transit Receivables by Ford to Ford
Credit as a sale, the transfer of the Receivables by Ford Credit to the [applicable] Depositor as a
sale, with respect to the characterization of the transfer of the Receivables from the Depositor[s]
to the Issuer, as well as certain related matters, to the nonconsolidation under the Bankruptcy
Code of the assets and liabilities of the Depositor[s] with the assets and liabilities of Ford
Credit in the event that Ford Credit were to become the subject of a case under the Bankruptcy
Code, and with respect to the security interest of the Trust in the Receivables, and such opinion
will be in substantially the form previously discussed with the Representatives and Ford Credit and
in any event satisfactory, in form satisfactory to the Representatives and counsel to the
Underwriters in their reasonable judgment and to Ford Credit.
(k) Delaware
UCC Opinions.
, special Delaware counsel, or such other counsel
satisfactory to the Representatives in their reasonable judgment, will have furnished an opinion,
dated the Closing Date, addressing such matters as the Representatives and their counsel may
reasonably request regarding various Delaware UCC matters, in form satisfactory to the
Representatives and counsel to the Underwriters in their reasonable judgment.
(l) Tax
and ERISA Opinions.
, or other counsel satisfactory to the
Representatives in their reasonable judgment, federal tax counsel to the Depositor[s], will have
furnished their written opinion, dated as of the Closing Date, in form satisfactory to the
Representatives and counsel to the Underwriters in their reasonable judgment, to the effect that:
(i) The statements in the Registration Statement and the Prospectus under the headings
“Summary — Tax Status,” “— ERISA Considerations,” “Material Federal Income Tax
Consequences” and “ERISA Considerations,” to the extent that they constitute matters of law
or legal conclusions with respect thereto, have been prepared or reviewed by such counsel
and are correct in all material respects.
(ii) The Issuer will not be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax purposes and the
Class A and Class B Notes will be characterized as debt for United States federal income
tax.
(m) Legality Opinions. The Representatives will have received an opinion of
, or other counsel satisfactory to the Representatives in their reasonable
judgment, addressed to the Representatives, dated the Closing Date,
with respect to the validity of the Notes and such other related matters as the Representatives, in their reasonable judgment, will require, in form satisfactory to the Representatives and
17
counsel to
the Underwriters in their reasonable judgment, and the Depositor[s] shall have furnished or caused
to be furnished to such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(n) Negative
Assurances.
, or other counsel satisfactory to the Representatives in
their reasonable judgment, special counsel to the Depositor[s] and Ford Credit, will have stated
that they have participated in conferences with representatives of the Depositor[s] and Ford Credit
and with Ford Credit’s in-house counsel, and with the Representatives and their counsel, concerning
the Registration Statement and the Prospectus and, and although such counsel is not independently
verifying the accuracy, completeness or fairness of such documents, confirms that on the basis of
such information:
(i) Each of the Registration Statement, as of its Effective Date, and the Prospectus,
as of its date and the Closing Date, appeared on its face to be appropriately responsive in
all material respects to the Act and the Rules and Regulations (except that such counsel
does not express any view as to financial statements, schedules or other financial or
statistical information included or incorporated by reference therein or excluded therefrom
or to the exhibits to the Registration Statement).
(ii) No facts have come to such counsel’s attention to cause such counsel to believe
that the Time of Sale Information, considered as a whole, as of the Time of Sale,
considered together with the statements in the Prospectus with respect to items dependent
upon the pricing terms and delivery date of the Notes, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or that the Prospectus,
as last amended or supplemented, as of their respective dates and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading (except that such counsel does not express any view as
to financial statements, schedules or other financial or statistical information included
or incorporated by reference therein or excluded therefrom).
(o) Owner
Trustee Opinions. The Representatives will have received an opinion addressed to the
Representatives, the Depositor[s] and the Servicer of , counsel to the Owner Trustee, or
other counsel satisfactory to the Representatives in their reasonable judgment, dated the Closing
Date, in form satisfactory to the Representatives and counsel to the Underwriters in their
reasonable judgment, to the effect that:
(i) The Owner Trustee has been duly incorporated and is validly existing as an [entity
type] in good standing under the laws of the State of [State].
18
(ii) The Owner Trustee has all necessary power and authority to execute and deliver
the Trust Agreement and the Certificate of Trust and to execute and deliver, on behalf of
the Issuer, the Transfer and Servicing Agreement[s], the Indenture and the Administration
Agreement. The Owner Trustee has all necessary power and authority to execute the Notes on
behalf of the Issuer.
(iii) Each of the Trust Agreement and the Certificate of Trust has been duly executed
and delivered by the Owner Trustee and each of the Transfer and Servicing Agreement[s], the
Indenture and the Administration Agreement has been duly executed and delivered by the
Owner Trustee on behalf of the Issuer. Each of the Notes has been duly executed and
delivered by the Owner Trustee on behalf of the Issuer.
(iv) Neither the execution and delivery of the Trust Agreement and the Certificate of
Trust by the Owner Trustee nor the execution and delivery of the Transfer and Servicing
Agreement[s], the Indenture, the Administration Agreement and the Notes, on behalf of the
Issuer, conflict with or result in a breach of or constitute a default under the Owner
Trustee’s organizational certificate or by-laws, any federal or [State] State law, rule or
regulation governing its banking or trust powers or, to the best of such counsel’s
knowledge, without independent investigation, any judgment or order applicable to the Owner
Trustee or its acts, properties or, to the best of such counsel’s knowledge, without
independent investigation, any indenture, mortgage, contract or other agreement or
instrument to which the Owner Trustee in its respective capacities is a party or by which
it is bound.
(v) Neither the execution and delivery by the Owner Trustee, on behalf of the Issuer,
of the Transfer and Servicing Agreement[s], the Indenture, the Administration Agreement or
the Notes nor the execution and delivery by the Owner Trustee of the Trust Agreement or the
Certificate of Trust require the consent, authorization, order or approval of, the giving
of notice to, the registration with, or the taking of any other action with respect to, any
governmental authority or agency under the laws of the State of [State] or the federal laws
of the United States governing the banking or trust powers of the Owner Trustee.
(vi) To the best of such counsel’s knowledge, without independent investigation, there
are no actions or proceedings pending or threatened against the Owner Trustee in any court
or before any governmental authority, arbitration board or tribunal of the State of [State]
which involve the Trust Agreement, the Certificate of Trust, the Transfer and Servicing
Agreement[s], the Indenture, the Administration Agreement or the Notes or would
question the right, power or authority of the Owner Trustee to enter into or perform
its obligations under the Trust Agreement or the Certificate of Trust or to execute and
deliver, on behalf of the Issuer, the Transfer and Servicing Agreement[s], the Indenture,
the Administration Agreement or the Notes.
19
(p) Delaware
Trustee Opinions. The Representatives will have received an opinion addressed to
the Representatives, the Depositor[s] and the Servicer of , counsel to the Delaware
Trustee, or other counsel satisfactory to the Representatives in their reasonable judgment, dated
the Closing Date, in form satisfactory to the Representatives and counsel to the Underwriters in
their reasonable judgment, to the effect that:
(i) The Delaware Trustee is duly incorporated and validly existing as a banking
corporation under the laws of the State of Delaware.
(ii) The Delaware Trustee has the power and authority to execute, deliver and perform
its obligations under the Trust Agreement.
(iii) The Trust Agreement has been duly authorized, executed and delivered by the
Delaware Trustee and constitutes a legal, valid and binding agreement of the Delaware
Trustee, enforceable against the Delaware Trustee, in accordance with its terms.
(iv) Neither the execution, delivery and performance by the Delaware Trustee of the
Trust Agreement, nor the consummation by the Delaware Trustee of any of the transactions
contemplated thereby, requires the consent, authorization, order or approval of, the giving
of notice to, the registration with or the taking of any other action in respect of, any
governmental authority or agency under the laws of the State of Delaware or any federal law
of the United States governing the banking or trust powers of the Delaware Trustee, other
than the filing of the Certificate of Trust with the Secretary of State (which Certificate
of Trust has been duly filed).
(v) Neither the execution, delivery and performance by the Delaware Trustee of the
Trust Agreement, nor the consummation by the Delaware Trustee of any of the transactions
contemplated thereby, (i) conflicts with or constitutes a breach of or default under the
Certificate of Trust, the Trust Agreement, the certificate of incorporation or by-laws of
the Delaware Trustee or, to the best of counsel’s knowledge, without independent
investigation, any agreement, indenture or other instrument to which the Delaware Trustee
is a party or by which it or any of its properties may be bound or (ii) violates any law,
governmental rule or regulation of the State of Delaware or any federal law of the United
States of America governing the banking or trust powers of the Delaware Trustee, or, to the
best of such counsel’s knowledge, without independent investigation, any court decree
applicable to the Delaware Trustee.
(vi) To the best of such counsel’s knowledge, without independent investigation, there
are no actions or proceedings pending or threatened against the Delaware Trustee in any
court or before any governmental authority, arbitration board or tribunal of the State of
Delaware which involve the Trust Agreement or would question the right, power or authority
of the Delaware Trustee to enter into or perform its obligations under the Trust Agreement.
20
(vii) To the best of such counsel’s knowledge, without independent investigation,
there exist no liens, security interests or charges affecting any of the property of the
Issuer resulting from acts or claims against the Delaware Trustee that are unrelated to the
transactions contemplated by the Trust Agreement.
(q) Issuer
Opinions. The Representatives will have received an opinion addressed to the
Representatives, the Depositor[s] and the Servicer of , counsel to the Issuer, or other
counsel satisfactory to the Representatives in their reasonable judgment, dated the Closing Date,
in form satisfactory to the Representatives and counsel to the Underwriters in their reasonable
judgment, to the effect that:
(i) The Issuer has been duly formed and is validly existing as a statutory trust under
the Delaware Statutory Trust Act, 12 Del. C. § 3801 et seq. (the “Act”), and has the power
and authority under the Trust Agreement and the Act to execute, deliver and perform its
obligations under the Indenture, the Transfer and Servicing Agreement[s], the
Administration Agreement and the Notes.
(ii) The Trust Agreement is the legal, valid and binding agreement of the Depositor[s]
and the Owner Trustee, enforceable against the Depositor[s] and the Owner Trustee, in
accordance with its terms.
(iii) The Issuer has the power and authority under the Trust Agreement and the Act to
Grant the Indenture Trust Estate to the Indenture Trustee pursuant to the Indenture.
(iv) Each of the Indenture, the Transfer and Servicing Agreement[s], the
Administration Agreement and the Notes has been duly authorized by the Issuer.
(v) The issuance of the Transferor Interest has been duly authorized by the Issuer and
the Transferor Interest, when executed and delivered to and paid for by the purchasers
thereof in accordance with the Trust Agreement, will be validly issued and outstanding and
entitled to the benefits of the Trust Agreement.
(vi) Neither the execution, delivery and performance by the Issuer of the Indenture,
the Transfer and Servicing Agreement[s], the Administration Agreement and the Notes, nor
the consummation by the Issuer of any of the transactions contemplated thereby, requires
the consent or approval of,
the giving of notice to, the registration with, or the taking of any other action with
respect to, any court, or governmental or regulatory authority or agency under the laws of
the State of Delaware, except for the filing of the Certificate of Trust with the Secretary
of State (which Certificate of Trust has been duly filed) and the filing of UCC financing
statements pursuant to the Indenture.
21
(vii) Neither the execution, delivery and performance by the Issuer of the Indenture,
the Transfer and Servicing Agreement[s] and the Administration Agreement, including the
execution and delivery of such documents by the Owner Trustee on behalf of the Issuer, nor
the consummation by the Issuer or the Owner Trustee on behalf of the Issuer of any of the
transactions contemplated thereby, is in violation of the Trust Agreement or of any law,
rule or regulation of the State of Delaware applicable to the Issuer or the Owner Trustee
or, to the best of such counsel’s knowledge, without independent investigation, any
agreement, indenture, instrument, order, judgment or decree to which the Issuer or any of
its property is subject.
(viii) After due inquiry on , 20 , limited to, and solely to the extent
disclosed thereupon, court dockets for active cases of the Court of Chancery of the State
of Delaware in and for New Castle County, Delaware, of the Superior Court of the State of
Delaware in and for New Castle County, Delaware, and of the United States District Court
sitting in the State of Delaware, such counsel is not aware of any legal or governmental
proceeding pending against the Trust.
(ix) Under the Act, the Issuer constitutes a separate legal entity, separate and
distinct from the holder of the Transferor Interest and any other entity and, insofar as
the substantive law of the State of Delaware is applicable, the Issuer rather than the
holder of the Transferor Interest will hold whatever title to such property as may be
conveyed to it from time to time pursuant to the Trust Agreement and the Transfer and
Servicing Agreement[s], except to the extent that such Issuer has taken action to dispose
of or otherwise transfer or encumber any such property.
(x) Except as otherwise provided in the Trust Agreement, under Section 3805(a) of the
Act, a holder of a Transferor Interest has no interest in specific statutory trust
property.
(xi) Under Section 3805(b) of the Act, no creditor of any holder of a Transferor
Interest shall have any right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of the Issuer except in accordance with
the terms of the Trust Agreement.
(xii) Under the Trust Agreement, the Owner Trustee has the authority to execute and
deliver on behalf of the Issuer the Transaction Documents to which the Issuer is a party.
(r) Indenture
Trustee Opinions. The Representatives will have received an opinion addressed
to the Representatives, the Depositor[s] and the Servicer of , counsel to the Indenture
Trustee, or other counsel satisfactory to the Representatives in their reasonable judgment, dated
the Closing Date, in form satisfactory to the Representatives and counsel to the Underwriters in
their reasonable judgment, to the effect that:
22
(i) The Indenture Trustee has been duly organized and is validly existing in good
standing as a corporation under the laws of the State of [State].
(ii) The Indenture Trustee has the corporate power and authority to enter into, and
perform its obligations under, the Indenture and has duly authorized, executed and
delivered the Indenture. Assuming that the Indenture is the legal, valid, binding and
enforceable obligation of the other party thereto, the Indenture constitutes the legal,
valid and binding obligation of the Indenture Trustee enforceable against the Indenture
Trustee in accordance with its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or affecting enforcement of creditors’ rights and the application
of equitable principles in any action, at law or in equity.
(iii) The execution and delivery of the Indenture and the performance by the Indenture
Trustee of its terms do not conflict with, result in a breach or violation of, or
constitute a default under, any of the terms, conditions or provisions of any law,
governmental rule or regulation of the United States or the State of [State] governing the
banking or trust powers of the Indenture Trustee or the Organization Certificate or By-laws
of the Indenture Trustee or of any agreement, instrument, order, writ, judgment or decree
known to such counsel to which the Indenture Trustee is a party or is subject.
(iv) No approval, authorization or other action by, or filing with, any United States
of America or State of [State] governmental authority having jurisdiction over the banking
or trust powers of the Indenture Trustee is required in connection with its execution and
delivery of the Indenture.
(v) Based solely on certificates of the Indenture Trustee, the Notes have been duly
authenticated and delivered by the Indenture Trustee, as Trustee under the Indenture.
(s) Closing Certificates. The Representatives will have received an officer’s certificate
dated the Closing Date of the Chairman of the Board, the President, an Executive Vice President, a
Vice President, the Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of each of Xxxx, Xxxx Credit, the Depositor[s] and the Servicer in which such officers
state that, to the best of their knowledge after reasonable investigation, the representations and
warranties of Ford and Ford Credit contained in the Sale and Assignment Agreement, the
representations and warranties of Ford Credit and the Depositor[s] contained in the Receivables
Purchase Agreement[s], the representations and warranties of the Depositor[s] and the Servicer
contained in the Transfer and Servicing Agreement[s] and the representations and warranties of the
Depositor[s] contained in the Trust Agreement, as the case may be, are true and correct in all
material respects, that Xxxx, Xxxx Credit, the Depositor[s] or the Servicer, as the case may be,
has complied with all agreements and satisfied all conditions on its part to be
23
performed or satisfied under such agreements at or prior to the Closing Date in all material
respects.
(t) Underwriters Counsel Opinion. The Representatives will have received an opinion addressed
to the Representatives of , counsel to the Underwriters, or such other counsel satisfactory
to the Representatives in their reasonable judgment, dated the Closing Date, with respect to the
validity of the Notes and such other related matters as the Representatives require, in form
satisfactory to the Representatives in their reasonable judgment, and the Depositor will have
furnished or caused to be furnished to such counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
(u) Ratings Letters. The Depositor[s] will have received ratings letters that assign the
ratings to the Notes specified in the Terms Annex.
(v) Transaction Documents. Each Transaction Document will have been executed and delivered by
the parties to such Transaction Document.
(w) Consideration. At the Closing Date, the Notes will have been validly issued by the Trust
and paid for by the Depositor[s].
7. Indemnification and Contribution. (a) [The]/[Each] Depositor will indemnify and
hold each Underwriter harmless against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, the Preliminary Prospectus, or any amendment or supplement
to any of such documents, or any Trust Free Writing Prospectus or the Time of Sale Information or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that the Depositor[s] will
not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with written information
furnished to the Depositor[s] by any Underwriter through the Representatives specifically for use
therein; and provided further, that the Depositor[s] will not be liable to any Underwriter or any
person controlling any Underwriter under the indemnity agreement in this subsection (a) with
respect to any of such documents to the extent that any such loss, claim, damage or liability
results from the fact that such Underwriter sold the Notes to a person to whom there was not sent
or given, at or prior to the Time of Sale, a copy of the Preliminary Prospectus or the Time of Sale
Information, whichever is more recent, if the Depositor has previously furnished copies thereof to
such Underwriter.
24
The indemnity agreement in this subsection (a) will be in addition to any liability which the
Depositor[s] may otherwise have and will extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the
Depositor[s] against any losses, claims, damages or liabilities to which the Depositor[s] may
become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact in the Registration Statement, the Prospectus, the
Preliminary Prospectus, or any amendment or supplement to any such documents, or any Free Writing
Prospectus or the Time of Sale Information, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any of such documents (i) in
reliance upon and in conformity with written information furnished to the Depositor[s] by such
Underwriter through the Representatives specifically for use therein or (ii) in an Underwriter Free
Writing Prospectus prepared by such Underwriter and is not Trust Information, and will reimburse
any legal or other expenses reasonably incurred by the Depositor[s] in connection with
investigating or defending any such action or claim.
The indemnity agreement in this subsection (b) will be in addition to any liability which each
Underwriter may otherwise have and will extend, upon the same terms and conditions, to each person,
if any, who controls [a]/[the] Depositor within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) of written
notice of the commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof, and in the event that such indemnified party does
not so notify the indemnifying party within 30 days following receipt of any such notice by such
indemnified party, the indemnifying party will have no further liability under such subsection to
such indemnified party unless the indemnifying party has received other notice addressed and
delivered in the manner provided in Section 12 hereof of the commencement of such action; but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under such subsection. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to the extent that it
may wish, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party in its reasonable judgment, and after
notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified party under such
25
subsection for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is unavailable or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party will contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Depositor[s] on the
one hand and the Underwriters on the other from the offering of the Notes. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law, then
each indemnifying party will contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Depositor[s] on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof) as well as any other relevant equitable considerations. The relative benefits
received by the Depositor[s] on the one hand and the Underwriters on the other will be deemed to be
in the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Depositor bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus as amended
or supplemented. The relative fault will be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Depositor[s] and
[its]/[their] affiliates or by the Underwriters and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or omission, including,
with respect to any Underwriter, the extent to which such losses, claims, damages or liabilities
(or actions in respect thereof) result from the fact that such Underwriter sold the Notes to a
person to whom there was not sent or given, at or prior to the Time of Sale, a copy of the
Preliminary Prospectus or the Time of Sale Information, whichever is more recent, if the [Depositor
has]/[Depositors have] previously furnished copies thereof to such Underwriter.
The Depositor[s] and the Underwriters, severally and not jointly, agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this subsection (d)
will be deemed to include any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any action or claim. Notwithstanding the provisions
of this subsection (d), no Underwriter will be required to contribute any amount pursuant to this
Agreement and the Indemnification Agreement (collectively) in excess of either (A) the amount by
which the total price at which the Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
26
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of
the Notes in this subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Notes as set forth in the Terms Annex and not joint.
8. Free Writing Prospectuses; Delivery of Preliminary Prospectus.
(a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Act, no Underwriter will convey or deliver any written communication to any person in
connection with the initial offering of the Notes, unless such written communication (i) is made in
reliance on Rule 134 under the Act, (ii) constitutes a prospectus satisfying the requirements of
Rule 430B under the Act or (iii) constitutes a Free Writing Prospectus.
(b) Each Underwriter represents and agrees with the Depositor[s] and Ford Credit that (i) it
has not and will not prepare or use and Free Writing Prospectus (any Free Writing Prospectus
prepared by or on behalf of an Underwriters is referred to as an “Underwriter Free Writing
Prospectus”) that contains any information other than (x) information included in the Preliminary
Prospectus or to be included in the final Prospectus (“Trust Information”) or (y) expected pricing
parameters for the Notes and status of subscriptions or allocations for the Notes, unless otherwise
agreed to by the Depositor[s], (ii) it will discuss with the Depositor[s] and Ford Credit the
information to be included, prior to its first use, in any Underwriter Free Writing Prospectus that
includes pricing-related information (including class size, coupons or spread and price placed on
Bloomberg screens) unless such pricing-related information was contained in an Underwriter Free
Writing Prospectus previously discussed with the Depositor[s], and (iii) it will not use any “ABS
informational and computational material,” as defined in Item 1101(a) of Regulation AB under the
Act in reliance upon Rules 167 and 426 under the Act. Each Underwriter will deliver to the
Depositor[s] any Underwriter Free Writing Prospectus required to be filed with the Commission
(other than an Underwriter Free Writing Prospectus referred to in Section 8(f)) the Business Day
prior to its first use (except as otherwise agreed by the Depositor[s]), except that the
Representatives agree to provide an Underwriter Free Writing Prospectus with all final pricing
information as soon as practicable on the day the Notes are priced.
(c) The Depositor[s] represent[s] and agree[s] with the Underwriters that [it/they] has not
prepared any Free Writing Prospectuses other than any listed in the Terms Annex under “Trust Free
Writing Prospectuses.”
(d) Each Underwriter represents and agrees with the Depositor[s] and Ford Credit that each
Underwriter Free Writing Prospectus prepared or used by such Underwriter, if any, when read in
conjunction with the Preliminary Prospectus and any Trust Free Writing Prospectus, will not, as of
the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective
purchaser of Notes, include any
27
untrue statement of a material fact or omit any material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made, not misleading;
provided, however, that such Underwriter makes no representation to the extent such misstatements
or omissions were the result of any inaccurate Trust Information supplied by the Depositor[s] or
Ford Credit to the Representatives or such Underwriter, which information was not corrected by
Corrective Information subsequently supplied by the Depositor[s] or Ford Credit to the
Representatives or such Underwriter prior to the Time of Sale
(e) The Depositor[s] agree[s] to file with the Commission when required under the Rules and
Regulations the following:
(i) The Preliminary Prospectus;
(ii) Each Trust Free Writing Prospectus required to be filed pursuant to Rule 433(d)
under the Act;
(iii) any Underwriter Free Writing Prospectus required to be filed pursuant to Rule
433(d) under the Act (other than an Underwriter Free Writing Prospectus required to be
filed pursuant to Rule 433(d)(1)(ii) under the Act); provided, such Underwriter Free
Writing Prospectus was delivered to the Depositor[s] reasonably in advance of the time
required to be filed pursuant to Rule 433(d) under the Act; and
(iv) any Free Writing Prospectus for which the Depositor[s] or any person acting on
[its]/[their] behalf provided, authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the Depositor[s] or any other
offering participant that is in the business of publishing, radio or television
broadcasting or otherwise disseminating communications.
(f) Each Underwriter agrees to file with the Commission any Underwriter Free Writing
Prospectus prepared by it when required to be filed under Rule 433(d)(1)(ii) under the Act, and
upon request, deliver a copy to the Depositor[s] and Ford Credit.
(g) Notwithstanding the provisions of Section 8(e) and Section 8(f), neither the Depositor[s]
nor any Underwriter will be required to file any Free Writing Prospectus that does not contain
substantive changes from or additions to a Free Writing Prospectus previously filed with the
Commission.
(h) The Depositor[s] and the Underwriters each agree that any Free Writing Prospectuses
prepared by it will contain the following legend:
The Issuer has filed a registration statement (including a prospectus) with the SEC
for the offering to which this free writing prospectus relates. Before you invest,
you should read the prospectus in that registration statement and other documents
the Issuer has filed with the SEC for more
28
complete information about the Issuer and this offering. You may get these
documents for free by visiting XXXXX on the SEC website at xxx.xxx.xxx.
Alternatively, the Issuer, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it by calling
toll-free .
(i) The Depositor[s] and the Underwriters each agree to retain all Free Writing Prospectuses
that they have used and that are not filed with the Commission in accordance with Rule 433 under
the Act.
(j) Each Underwriter, severally, represents and agrees (i) that it did not enter into any
contract of sale for any Notes prior to the Time of Sale and (ii) that it will, at any time that
such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with
respect to the Notes, convey to each investor to whom Notes are sold by it during the period prior
to the filing of the final Prospectus (as notified to the Underwriters by the Depositor[s]), at or
prior to the applicable time of any such contract of sale with respect to such investor, the
Preliminary Prospectus.
(k) Each Underwriter covenants with the Depositor[s] and the Trust that after the final
Prospectus is available the Underwriter will not distribute any written information concerning the
Notes to a prospective purchaser of Notes unless such information is preceded or accompanied by the
final Prospectus.
9. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Depositor[s] or the officers of
the Depositor[s] and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation or statement as to the results
thereof, made by or on behalf of any Underwriter, the Depositor[s] or any of their respective
representatives, officers or directors of any controlling person, and will survive delivery of and
payment for the Notes.
10. Failure to Purchase the Notes.
(a) If the purchase of the Notes are not be consummated because the circumstances described in
Section 6(f) have occurred, then the Depositor[s] will not have any liability to the Underwriters
with respect to the Notes except as provided in Section 5(h) and Section 7; but if for any other
reason the Notes are not delivered to the Underwriters as provided in this Agreement, the
Depositor[s] will be liable to reimburse the Underwriters, through the Representatives, for all
out-of-pocket expenses, including counsel fees and disbursements reasonably incurred by the
Underwriters in making preparations for the offering of the Notes, but the Depositor[s] will not
then have any further liability to any Underwriter with respect to the Notes except as provided in
Section 5(h) and Section 7.
(b) If any Underwriter or Underwriters default on their obligations to purchase Notes
hereunder and the aggregate principal amount of Notes that such
29
defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Notes, the Representatives may make arrangements satisfactory to
the Depositor[s] for the purchase of such Notes by other persons, including the non-defaulting
Underwriter or Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriter or Underwriters will be obligated, in proportion to their commitments
hereunder, to purchase the Notes that such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters so default and the aggregate principal amount of
Notes with respect to which such default or defaults occur exceeds 10% of the total principal
amount of the Notes and arrangements satisfactory to the non-defaulting Underwriter or Underwriters
and the Depositor[s] for the purchase of such Notes by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter and the Depositor[s], except as provided in Section 5(h) and Section 7
hereof. Nothing herein will relieve a defaulting Underwriter or Underwriters from liability for
its default.
11. No Fiduciary Duty. The Depositor[s] acknowledge[s] that in connection with the
offering of the Notes: (a) the Underwriters have acted at arm’s length, are not agents of, and owe
no fiduciary duties to, the Company or any other person, (b) the Underwriters owe the Depositor[s]
only those duties and obligations set forth in this Agreement and (c) the Underwriters may have
interests that differ from those of the Depositor[s]. The Depositor[s] waive[s] to the full extent
permitted by applicable law any claims [it]/[they] may have against the Underwriters arising from
an alleged breach of fiduciary duty in connection with the offering of the Notes.
This Agreement, together with any contemporaneous written agreements and any prior written
agreements (to the extent not superseded by this Agreement) that relate to the offering of the
Notes, represents the entire agreement between the Depositor[s] and the Underwriters with respect
to the preparation of the Prospectus, and the conduct of the offering, and the purchase and sale of
the Notes.
12. Notices. All notices, requests, demands, consents, waivers or other
communications to or from the parties to this Agreement must be in writing and will be deemed to
have been given and made:
(a) upon delivery or, in the case of a letter mailed by registered first class mail, postage
prepaid, 3 days after deposit in the mail,
(b) in the case of a fax, when receipt is confirmed by telephone, reply email or reply fax
from the recipient, or
(c) in the case of an email, when receipt is confirmed by telephone or reply email from the
recipient.
Communications to the Representatives or the Underwriters will be given to the Representatives at:
30
(i) __________,
(ii) __________, and
(iii) _________.
Communications to the Depositor[s] will be given to:
[Ford Credit Floorplan Corporation]
[Ford Credit Floorplan LLC]
c/o Ford Motor Company
World Headquarters
Xxx Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attention: Ford Credit SPE Management Office
Telephone: (000) 000-0000
Fax: (000) 000-0000
[Ford Credit Floorplan LLC]
c/o Ford Motor Company
World Headquarters
Xxx Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attention: Ford Credit SPE Management Office
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx
Xxxxx 0000, Xxxxxx 000-000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Fax: (000) 000-0000
Xxx Xxxxxxxx Xxxx
Xxxxx 0000, Xxxxxx 000-000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Fax: (000) 000-0000
13. Successors. This Agreement will inure to the benefit of and be binding upon the
Underwriters and the Depositor and their respective successors and the officers and directors and
controlling persons referred to in Section 7, and no other person will have any right or
obligations hereunder.
14. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
15. Submission to Jurisdiction. The parties submit to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of any New York State
Court sitting in New York, New York for purposes of all legal proceedings arising out of or
relating to this Agreement. The parties irrevocably waive, to the fullest extent they may do so,
any objection that they may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
16. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY
31
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
17. Severability. If any of the covenants, agreements or terms of this Agreement is
held invalid, illegal or unenforceable, then it will be deemed severable from the remaining
covenants, agreements or terms of this Agreement and will in no way affect the validity, legality
or enforceability of the remaining Agreement.
18. Counterparts. This Agreement may be executed in any number of counterparts.
Each counterpart will be an original, and all counterparts will together constitute one and the
same instrument.
32
| EXECUTED: [FORD CREDIT FLOORPLAN CORPORATION] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [FORD CREDIT FLOORPLAN LLC] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[NAME OF UNDERWRITER]
| By: | Title: |
[NAME OF UNDERWRITER]
| By: | Title: |
[NAME OF UNDERWRITER]
| By: | Title: |
33
[NAME OF UNDERWRITER]
| By: | Title: |
[NAME OF UNDERWRITER]
| By: | Title: |
[NAME OF UNDERWRITER]
| By: | Title: |
[NAME OF UNDERWRITER]
| By: | Title: |
[NAME OF UNDERWRITER]
| By: | Title: |
[NAME OF UNDERWRITER]
| By: | Title: |
34
ANNEX A
FORM OF TERMS ANNEX
, 20
[NAMES OF REPRESENTATIVES]
On behalf of themselves and as representatives
(the “Representatives”) of the other Underwriters
On behalf of themselves and as representatives
(the “Representatives”) of the other Underwriters
Terms of the Notes
Pricing Date:
|
, 20 | |
Time of Sale:
|
, 20 | |
Closing Date:
|
, 20 | |
Series Cutoff Date:
|
, 20 | |
Notes:
|
Class A Notes | |
| Class B Notes |
Required Ratings as of the Closing Date:
| S&P | Xxxxx'x | Fitch | ||||
Class A Notes |
||||||
Class B Notes |
I- 1
| Notes | Aggregate | Interest | Purchase Price | Final | Final | |||||||||||||||
| Principal | Rate | (as a % of the | Payment Date | Maturity Date | ||||||||||||||||
| Amount | aggregate | |||||||||||||||||||
| amount) | ||||||||||||||||||||
| principal | ||||||||||||||||||||
Class A Notes |
$ | % | % | , 20 | , 20 | |||||||||||||||
Class B Notes |
$ | % | % | , 20 | , 20 | |||||||||||||||
Underwriters and Allotments
| Initial Principal | Initial Principal | |||
| Amount of | Amount of | |||
| Underwriters | Class A Notes | Class B Notes | ||
[ ]
|
[ ] | [ ] | ||
[ ]
|
[ ] | [ ] | ||
[ ]
|
[ ] | [ ] | ||
[ ]
|
[ ] | [ ] | ||
[ ]
|
[ ] | [ ] | ||
[ ]
|
[ ] | [ ] | ||
Total
|
[ ] | [ ] |
Additional Terms
Section 6(f) of the Underwriting Agreement is deleted in its entirety and replaced with the
following:
“(f) Market Out. Subsequent to the execution and delivery of this Agreement:
| (i) | (A) there shall not have occurred a declaration of a general moratorium on commercial banking activities by either the Federal or New York State authorities or a material disruption in the securities settlement or clearance systems in the United States, which moratorium or disruption remains in effect and which, in the Representatives’ reasonable judgment, substantially impairs the Underwriters’ ability to settle the transaction; provided that the exercise of such judgment shall take into account the availability of alternative means for settlement and the likely duration of such moratorium or disruption with the understanding that if the Commission or with respect to a banking moratorium, the Board of Governors of the Federal Reserve System or New York State banking authority, as applicable, has unequivocally stated prior to the Closing Date that the resumption of such systems will occur within 3 business days of |
2
| the scheduled Closing Date for the Notes, the ability to settle the
transaction shall not be deemed to be substantially impaired and (B) the
United States shall not have become engaged in hostilities which have
resulted in the declaration of a national emergency or a declaration of war,
which makes it impracticable or inadvisable, in the Representatives’
reasonable judgment, to proceed with the public offering or the delivery of
the Notes on the terms and in the manner contemplated in the Prospectus as
amended or supplemented or the offering, and |
|||
| (ii) | there shall not have occurred (A) any suspension or limitation on trading in securities generally on the New York Stock Exchange or the National Association of Securities Dealers National Market system, or any setting of minimum prices for trading on such exchange or market system, (B) any suspension of trading of any securities of Ford Motor Company on any exchange or in the over-the-counter market or (C) any material outbreak or material escalation of hostilities involving the engagement of armed conflict in which the United States is involved or (D) any material adverse change in the general economic, political, legal, tax, regulatory or financial conditions or currency exchange rates in the United States (whether resulting from events within or outside the United States) which, in the Representatives view has caused a substantial deterioration in the price and/or value of the Notes, that in the case of clause (A), (B), (C) or (D), in the mutual reasonable determination of the Representatives and Ford Credit, the effect of any such event or circumstance makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Prospectus as amended or supplemented.” |
Parties
Issuer or Trust:
|
Ford Credit Floorplan Master Owner Trust . | |
Delaware Trustee: |
||
Owner Trustee: |
||
Indenture Trustee: |
Documents
Indenture Supplement:
|
Series Indenture Supplement, to be dated as of , 20___, by and between the Trust and the Indenture Trustee. | |
Indenture:
|
Indenture, dated as of , 20___, by and between the Trust and the Indenture Trustee |
3
[Address for Notice to Representatives: |
||
[ ] |
||
[ ] |
||
SEC Registration Number |
||
Registrants:
|
[Ford Credit Floorplan Corporation] | |
| [Ford Credit Floorplan LLC] | ||
Registration Number:
|
[333-148505] | |
| [000-000000-00] | ||
Time of Sale Information |
||
Preliminary Prospectus:
|
Preliminary Prospectus, dated as of , 20_. | |
Trust Free Writing Prospectuses |
||
•
|
None |
4
